This Legal Conundrum We Call "The Blues"

... Just ran across a class action lawsuit that’s been filed by the few surviving original Delta and Chicago blues artists, along with relatives and estate representatives for dozens more who are deceased.

The suit alleged copywrite infringement by numerous original Delta and Chicago blues artists deceased or otherwise — to wit, that the defendants “stole” song structures without giving credit or royalties to the original writers.

The case is being called by legal scholars and entertainment lawyers as one of the most perplexing ever filed in the United States for one big reason.

“Essentially, the problem is that every blues song is exactly the same as every other blues song,” said Wyatt “Gatorboy” Reece, an Austin guitarist who once played in Blind Lemon Amputee’s band, and who writes a monthly column on blues history for True Roots Music Monthly.

“If you analyze any blues song, you’ll find that it’s essentially a I-IV-V chord progression,” Reece explained. “Well, not ‘essentially,’ it is a I-IV-V chord progression."

In fact, the rigid form has been ingrained in the blues for years; bluespioneer Robert Johnson was poisoned outside Greenwood, Mississippi, in 1938 for daring to play a new song that wasn't a I-IV-V chord progression.” *

The only variations in any given blues tune, then, is what key it’s in, and whether the lyrics of the piece start with “I woke up this morning,” “My baby left me” or “I’m being chased by the devil" or a more generic demon or even some of Satan’s pets – most typically, a “hound” (to see actual footage of a "hellhound" in action, click here). But these minor variations are not deemed by most experts as sufficient to provide distinction in any given case.

Over the years, more and more bluesmen started to note a tendency in newer blues songs to rely on the original blueprint of the genre. Gradually, as one or another bluesman had success and scored royalty checks with a song that suspiciously bore eerie similarities to any of a number of earlier works, a collective feeling of disgruntlement swept through the clubs and record labels associated with blues artists. The musicians began to talk of filing a collective lawsuit for copywright infringement and to collect lost royalties.

But it wasn’t until the musicians and survivors banded together and several early documents were filed that the core issue began to surface.

“It’s sort of an embarrassment, really,” said attorney Marius Whuzzner of Sawyer, Carson & Whuzzner, a Los Angeles firm specializing in entertainment law. “What happened is that, since no one can authenticate who actually wrote the first blues song, and since they are all exactly alike, the very plaintiffs who brought the suit eventually discovered that -- oops! -- they are the defendants in their own litigation!”

As it stands now, the judge overseeing the case, the Honorable Geri Scoggins, has suggested the plaintiffs – which is to say the defendants – might want to reconsider the parameters of their original claims and possibly find a different way to define what precisely constitutes a “blues song.”

Attorneys on both sides—which is somehow the same side — have agreed to postpone further activity until an attempt at mediation can be made.

Only one of the original plaintiffs, Blind Tick Forbert, has dropped out of the civil suit, having reached an out of court settlement with himself.

More as things develop.

* Scholars suggest the off-putting chord structure Johnson played the night of his death bears an uncanny similarity to an entire Genesis concert that took place October 30, 1973 during their Selling England by the Pound tour.